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Washington Post Provides Link to Tribe-Balkin Debate on Presidential Eligibility (February 7, 2016, 12:49 PM)

On February 5, the Federalist Society Chapter at Harvard Law School sponsored a debate between professors Laurence Tribe and Jack Balkin on presidential eligibility. See the Washington Post’s story, and its link to the debate itself. Thanks to HowAppealing for the link to the Post.

Ohio Libertarian Party Ballot Access Lawsuit Gets Closer to a Decision in U.S. District Court (February 6, 2016, 12:35 PM)

On February 5, the U.S. District Court that is handling Libertarian Party of Ohio v Husted, s.d., 2:13cv-953, got closer to a final decision on the last issue to be decided. That last issue is whether Ohio applied a campaign finance law in a discriminatory manner in 2014, when for the first time it kept a candidate off the ballot because the circulators didn’t fill out a blank form on the petition, telling who their employer was. The law had never before kept anything off the ballot, whether a ballot measure or a candidate. But in 2014, it was used to keep the only Libertarian running for Governor off the Libertarian primary ballot. That kept the party from having any gubernatorial nominee in 2014, and that insured it went off the ballot, because the only way it could stay on was by polling 2% for Governor.

The February 5 activity in the case was an order denying sanctions against attorneys representing the side of the case in opposition to the Libertarian Party. The Libertarian Party had requested sanctions, because some of those attorneys and witnesses had made it so difficult for the truth to be revealed about who was paying legal bills to keep the party’s candidate off the ballot. Although the Court did not impose sanctions, it said, “The overall conduct of discovery in this case, especially on the part of Mr. Felsoci’s and Mr. Casey’s counsel, demonstrates a pattern of technical and begrudging responses and objections to discovery requests, which pattern was clearly designed to delay or obstruct the Plaintiffs’ ability to learn that the Ohio Republican Party was involved in the effort to keep Libertarian Party candidates off the ballot…should these particular attorneys or parties come before the Court in future cases, the history of their conduct here will strongly influence the Court’s approach to discovery, including sanctions.”

News Story About National Popular Vote Plan Suggests Republicans in Missouri Growing More Supportive (February 5, 2016, 11:38 PM)

This story says Republicans are becoming more supportive of the National Popular Vote Plan. The story has a focus on Missouri.

Three-Judge U.S. District Court Invalidates North Carolina?s U.S. House District Boundaries (February 5, 2016, 07:16 PM)

On February 5, a 3-judge U.S. District Court issued an opinion in Harris v McCrory, m.d., 1:13cv-949. It found that North Carolina’s U.S. House district boundaries for the First and Twelfth Districts violate the Fourteenth Amendment.

The decision gives the state two weeks to redraw the boundaries. The state is, of course, free to ask the U.S. Supreme Court to countermand the decision. If the U.S. Supreme Court declines to get involved at this stage, and if the legislature doesn’t redraw the boundaries, the 3-judge court will do so.

North Carolina’s primary for all office is on March 15. If the decision is not stayed, it seems inevitable that the state will need to hold a later, separate primary, for U.S. House. The First and Twelfth districts do not touch each other. The First district is in the northeast and touches Virginia, and the Twelfth District is in the western half of the state and touches South Carolina. The two districts are so irregular in shape, one or the other one of them touches every other U.S. House district except the 11th district. Thus, any new districts will change virtually all the districts.

The opinion was written by U.S. Court of Appeals Judge Roger L. Gregory, a Clinton appointee. U.S. District Court Judge Max Cogburn, an Obama, wrote separately to say he is in complete agreement with Judge Gregory. He wrote separately to express himself about the harm done by any type of gerrymandering. He mentioned that one of the Congressmembers who represents the 12th district said it was almost impossible for him to visit all the communities in his district, because it extends hundreds of miles in a very thin strip, with many tentacles. U.S. District Court Judge William L. Osteen, a Bush Jr. appointee, said he agrees that the First District is unconstitutional but that he feels the Twelfth District is constitutional.

If the decision stands, it has ballot access implications. If North Carolina has a later primary for U.S. House, the state will feel the need to extend the independent candidate petition deadline, at least for U.S. House. North Carolina’s independent candidate deadline is June 9. Thanks to Rick Hasen for the link. UPDATE: see this story.

South Dakota Bill for Filing Fee Alternative to Petitions Passes Committee (February 5, 2016, 06:32 PM)

On February 5, the South Dakota Senate State Affairs Committee passed SB 95 by a vote of 4-2. The bill says candidates for Governor, U.S. Senate, U.S. House, and legislature may avoid petitioning if they pay a filing fee of 1% of the annual salary of the office. This is true for candidates trying to get on a primary ballot, and it is also true for independent candidates.

The committee has seven members. Both Democrats on the committee, Billie Sutton and Troy Heinert, voted “yes.” Two Republicans, Bob Ewing and Ried Holien, voted “yes.” Two Republicans, Scott Fiegen and Jenna Haggar, voted “no.” Betty Olson was excused for that hearing.

U.S. District Court Keeps Kentucky Libertarian Party 2014 Debate Lawsuit Alive (February 5, 2016, 11:36 AM)

On February 5, U.S. District Court Judge Gregory F. Van Tatenhove issued a 22-page opinion in Libertarian National Committee v Holiday, e.d., 14-63. The issue is whether Kentucky Educational TV excluded the Libertarian Party nominee for U.S. Senate from Kentucky, David Patterson, because of prejudice against him and his views. The ruling grants permission for the Libertarian Party to take depositions from the Kentucky Educational TV officers who made the decision to exclude Patterson. The Defendants had tried to get the case dismissed without any further evidence-gathering. Patterson was one of only three candidates on the ballot in 2014 for U.S. Senate; the others were Mitch McConnell and Alison Lundergan Grimes.

The decision mentions one piece of evidence that suggests the TV station made up its mind to exclude Patterson without even waiting to see if he met the objective criteria set forth for candidates. One of the defendants sent an e-mail to employees of the station, stating, “please confirm…we did not and will not invite David Patterson…to the October 13 program, because he did not meet our pre-established criteria.” The words “and will not” are italicized.

During 2014, the TV station set criteria on who could be invited, and then changed them, vastly increasing their difficulty. Presumably the reasons for changing the criteria will be revealed in the next stage of the lawsuit. The decision does say that the final standard, that the candidate must have raised at least $100,000, is not unconstitutional.

Florida Supreme Court Rules that Write-in Candidates are ?Real Candidates? (February 5, 2016, 12:49 AM)

On February 4, the Florida Supreme Court issued a unanimous opinion in Brinkmann v Francois, SC14-1899. It agrees with the Florida State Court of Appeals that write-in candidates in general elections are “real” candidates.

The case arose because Florida has closed primaries, except in instances when all the candidates who file are members of the same party and the winner of that one party’s primary will be be the only candidate in November. At the 2014 election for Broward County Commissioner, district 2, all the candidates who filed for any primary filed for the Democratic primary. But, one person also filed to be a declared write-in at the general election.

The trial court said that the primary should be open to all voters, because it ruled that the general election write-in candidate was ineligible because he didn’t live in district 2. But the Appeals Court, and now the State Supreme Court, ruled that the write-in candidate was eligible. Although the election law says candidates for County Commission must live in the district when they file, the State Constitution says candidates for that office merely must live in that district on election day. The Florida Supreme Court said that the Constitution trumps the election law, and since no one knew where the write-in candidate would be living on election day (at the time the ballots were being printed), the write-in candidate was eligible.

The people who wanted an open primary for that seat argued that even if the write-in candidate was eligible, that his presence should be ignored because it was obvious that he was not a strong candidate and that he had no chance of winning. But the Supreme Court said those considerations don’t matter; a declared write-in candidate is a genuine candidate, regardless of his or her likelihood of winning or even polling a large vote.

Delaware Green Party Registration Dips Below Minimum Required for Ballot Access (February 4, 2016, 08:03 PM)

For the 2016 election, Delaware requires parties to have at least 653 registered voters. The February 1 tally shows the Greens only have 631, below the requirement. However the party has until August to increase its registration.

New York Presidential Primary Will Contain Only Hillary Clinton and Bernie Sanders (February 4, 2016, 06:12 PM)

Only Hillary Clinton and Bernie Sanders submitted petitions to be on the New York Democratic presidential primary. The deadline was February 4.

So far, the New York Democratic presidential primary is the first major party ballot in 2016 with only two names.

Arizona House Passes National Popular Vote Plan Bill (February 4, 2016, 05:55 PM)

On February 4, the Arizona House passed HB 2456 by 40-16. This is the National Popular Vote Plan bill.

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